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After hours access to work may lead to overtime claims

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Photograph by zombiefactory

We’ve been hearing lately that in the United States employers are being held liable to employees for overtime compensation for using PDAs/BlackBerrys after hours for work and for checking work-related emails. We’ve been made aware of four such class action suits by employees that allege, among other claims, that the company provides them with BlackBerrys or other smart devices, and that they are required to review and respond to work-related emails and text messages at all hours of the day, amounting to 10 to 15 overtime hours per week.

It seems nowadays that almost every employee or executive uses some type of portable modern technology such as cellphones, personal data assistants, such as BlackBerrys, as well as laptops and remote workstation connections. Why? They have a number of uses, such as access to: a calculator, clock, calendar, video recorder, address book, word processor, radio, and even Global Positioning System (GPS) service. They can also be used to access the Internet, create and write spreadsheets, and play computer games, or as portable media players and of course mobile phones. But most important of all, PDAs can be used to send and receive emails.

They have allowed employers to stay connected with employees, and employees to stay connected to customers and the workplace 24/7, resulting in what can be called a “perpetual workplace”.

Even when employees leave the workplace after hours, or are outside the office during lunch, on weekends or on vacation, they increasingly are checking or typing away on their PDAs performing work-related activities.

In addition, employees are becoming more and more concerned about job security at a time when economic problems are increasing competition in the job market. Furthermore, businesses of all sizes are working to maintain revenues and keep afloat during the economic downturn. These factors are leading employees at all levels to work harder and longer hours to stand out from the crowd, resulting in many employees being unable to separate the time they’re working from the time they aren’t.

Working time is the period of time that an individual spends at paid occupational labour. In general, employment/labour standards legislation prescribes a legal maximum number of hours per day or week that employees are permitted to work. The standard is: employees must be paid for all hours worked. For most employees, overtime rates apply after they have worked the defined threshold in a workweek.

Employees are considered not to be working when they are permitted to take time off work for their own private affairs or pursuits. If an employer cannot identify accurately when an employee was or was not working, it might not be able to defend itself against employee complaints regarding wages owing. Without records to support the fact that the employer granted employees time off and how long they were off, courts, arbitrators or employment standards officers will assume that an employee was working and is entitled to pay for the time. Further, if the work exceeds overtime thresholds, then the employer will be obliged to pay overtime pay.

Time worked outside the office is very difficult for an employer to track, and could become very costly. Some argue that the time employees spend on their PDAs should not be compensable because they are not under the employer’s control or authorized.

Legal experts are warning employers that this problem will not go away and that they should be proactive by creating specific policies and procedures that address employees’ use of PDAs during and outside regular work hours. The policy should state, at a minimum, that employees must report any work time spent using PDAs. Businesses should also consider placing limits on when employees can use the devices beyond the standard work hours—possibly up to the point of requiring permission before using their PDAs after work hours.

So far there have not been any reported overtime claims for remote access for work conducted outside regular work hours in Canada. However, it is an interesting HR issue with potential liabilities for Canadian employers in the near future.

What do you think?

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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6 thoughts on “After hours access to work may lead to overtime claims
  • Yosie says:

    I do agree that employment standards should be reviewed to reflect todays workplace environment, even standardise across the country. However, any changes to overtime protection to ensure economic competitiveness must be achieved without compromising employee protection in the workplace. Overtime provisions in the Act are there to ensure employees are not exploited, and that they will be able to enjoy both a fair remuneration and a life outside of work.

  • Bruce says:

    I think it’s an inevitability that these tools and the subsequent implied expectation of employees to stay in touch with the workplace outside of the typical work hour period is not going to go away but will continue to grow and evolve over time.

    I do agree…establishing policies around this issue is a must. At the same time, we are just talking about roles that are OT exempt and not those roles that are required to be compensated with OT…in this case this issue encompasses the population that typically carry around blackberries/mobile devises which are the folks that are implicitly expected to “keep in contact with the office” outside of typical work hours.

    My question: Are we in Canada expected to see OT legislation changing to include the now typical OT exempt populations?

    Cheers!

  • Leon A. Mills, CAE, M.Ed. says:

    Hello Yosie and Maria:

    Thanks for your replies, both of which make perfect sense to me and hopefully, to everyone else who believe they have to check, have to check, have to……Bye for now!

  • Maria says:

    Only one word.
    Keep it at the office and don’t allow employees to take it home. Remember, if the employee wants to take it home, yes, they are keeping in touch and staying in the loop. BUT!!! They are also using it for personal use, Leave your PDA at work and you will have no issue. Sign it out to those that will be compensated (on call).

  • Yosie says:

    I do love the term ‘crackberry’… I also agree that this social trend of always wanting to be connected and in the loop may make employees’ think that they are indispensable to the employer; the consequences on work-life-balance and health will become HR issues that will be very costly to both employees and employers.

  • Leon A. Mills, CAE, M.Ed. says:

    This blog was a very interesting read and should be a wake-up call to employers and employees.

    I’ve seen and heard of numerous examples of people using their cellphones, blackberries, etc, excessively and at the oddest times and hours like at the dinner table, lake, boating, getting up from bed at 2:00 am and the list goes on.

    In my view, if there are employers who are requiring their employees to be in constant touch with the office, then, this is abusive and wrong and it should stop. The employer might find themselves at the wrong end of a lawsuit, especailly if there are health or disability claims involved, that resulted from the stress of being constantly connected.

    What about the employee’s perspective? Why are they doing this? As noted in the blog, it may be due, in part, to employer demands, or the fear of being downsized in a struggling econonmy. Might it also be due, in part, to this new additction called, ‘crackberry’? Due to this addiction of wanting to always be connected for fear of missing something important, there may be a terrible price to pay in the long term – stress, health problems, disability, marital problems, mental health problems and the list goes one.

    Any, or some combination of all of these could lead to loss of financial income and destroy one’s lifestyle. Where has all the stress and worry about being connected gotten you?

    So, anyone who is constantly connected needs to get some help, either via counselling or by talking to their boss to set some guidelines. If they don’t, it may not be too long before they are facing their boss in a courtroom trying to win a lawsuit, that really, should never happen if some common sense prevailed.

    Bye for now!